In the age of "Freedom Fries," one might expect that a deeply conservative Supreme Court dominated by Republican appointees, would not be making a ruling based on a decision made by a court in France. One would be wrong. For the first time ever, in its Lawrence v. Texas decision overruling that state's sodomy law, the Supreme Court majority cited and discussed at length a decision by the European Court of Human Rights (ECHR).

The vast majority of Americans have probably never heard of the ECHR, so a little background might be helpful. In the aftermath of World War II, international organizations were very much in vogue, especially in Europe. That's when the UN, NATO, the World Bank, and any number of other organizations were founded. One of those organizations was the Council of Europe (COE). The COE is like the UN General Assembly in that it is an organization of diplomats with no real power. Ten Western European countries joined initially; now, after the fall of Communism, the number stands at 44. One of the first things the COE did was to draft the European Convention on Human Rights, guaranteeing a wide variety of civil and political rights to European citizens. The ECHR was created to interpret the convention and has been handing down decisions since 1958.

Remarkably for an international court, the ECHR has functioned like a Supreme Court for all of Europe, striking down national laws when they conflict with the principles enshrined in the Convention. It's not so unusual for an international court to condemn the practices of a member nation, but what is unusual is that in the case of the ECHR those member nations actually pay attention. The national laws of countries like Austria and Belgium are regularly stuck down and altered in response to ECHR decisions. What's more, individuals can bring suit against their own country, alleging violation of their rights. An analogy would be if an American citizen were to get a Supreme Court ruling overturned by a court in Peru. If a state chooses not to comply, the only sanction the Court has available is diplomatic pressure, and, ultimately, expulsion from the COE. But peer pressure in Europe is intense, and the shame that results from noncompliance has been enough to keep all those countries in line for all these years. Only one country, Greece, has ever explicitly defied the court, and even that didn't last long. (The government in Greece was overthrown in the 70s by a military coup that didn't recognize the authority of the ECHR. Greece reentered the COE when the democratic government was reinstalled a few years later.) In the past decade, Turkey and Italy have been slow to make court-ordered changes, and it remains to be seen what the addition of all those former Communist states will mean for the court. Still, the ECHR is undoubtedly the most successful international human rights court ever.

On the other hand, American law, like Americans, traditionally has been fiercely independent and largely ignorant of developments beyond its borders. Very rarely an American court might reference a decision by a court in the United Kingdom, since both nations share a common law tradition. More frequently, doctrines derived from pre-1789 English law live on here even when they've disappeared in England. After all, this is America, where freedom was invented, so what could foreigners possibly know or contribute?

So, when the U.S. Supreme Court turns to a European court for help in determining what constitutes a fundamental human right, it's pretty shocking. To be fair, the original 1986 Supreme Court decision upholding sodomy laws, Bowers v. Hardwick, set itself up for this kind of attack. The premise that there is no fundamental right to consensual sex in the privacy of a home was, in Bowers, based on a notion of shared Western values. The Court seemed completely ignorant then that five years earlier, in 1981, most of the rest of Western civilization had come to a different conclusion. Now, it seems, the Court has gotten its head out of the sand.

Not all of the Court, of course. In true American fashion, Justice Scalia excoriates the majority in Lawrence for its reliance on the opinions of foreigners. Quoting an earlier opinion by his esteemed colleague Justice Thomas, Scalia writes "this Court…should not impose foreign moods, fads, or fashions on Americans." It's a telling comment on how Scalia's brain works that he can describe respect for private, consensual sex as a fad or fashion, as if the Court were forcing Americans to listen to Abba.

About Steve Diehl

Talk politics at the The Water Cooler